SRI  NILAKANTHA  PANDA,  PRESIDENT

            The instant complainant has filed this complaint petition, U/s. 12 & 13 of erstwhile Consumer Protection Act, 1986, read as U/s. 35 of C.P.A.-2019 of the new Act (here-in-after called as the “C.P. Act - 2019”), on dated 09/04/2019, alleging a “deficiency-in-service” against the Ops, where, OP No.1 to 4 are Branch Manager, Business Head & Claim Manager of ICICI Lombard GIC Ltd , located at Balasore, Mumbai & Kolkata, respectively and the OP No.5 is The Corporate Risk Solutions Private Limited, located at Cuttack, Odisha, claiming compensation.

            The factual matrix of this case is that on dated 29/05/2018, the complainant forwarded his Ashok Leyland truck bearing Registration No. OR-09H-0792 having Chassis No. XFE567364, Engine No. XFH3866091 to Bhadrak loaded with Asbestos by his driver Sukadev Suren. Said truck was properly insured with the Ops vide Policy No.3003/144418526/00/000 which was valid from 20/02/2018 to 19/02/2019. On the way to Bhadrak, at Ghanteswar, the driver parked the truck at Charigharia Chhak by rightfully locking the door and went for his dinner. While the driver returned to the parking place of the said truck at about 03.00 AM there he fund that his truck was not there and some broken glasses & rubber are lying on the ground at the spot. That upon getting information, the complainant rushed to the spot and ascertained that his truck was stolen. Then he lodged an FIR before the IIC, Bhadrak Town Police Station which was registered as P.S. Case No.130 dated 30/05/2018. During the course of investigation, police arrested the accused persons and forwarded them to Court, examined the witnesses and subsequently submitted charge sheet against accused one Ramakanta Barik and another Kailash Jena.

            Subsequently, as soon as the complainant lodged the FIR, he instantly informed the matter to the Ops 01 to 04, through their toll-free number which was acknowledged by them and initiated one claim enquiry against the goods carrying commercial vehicle package with reference to the policy in question against the alleged vehicle and intimated the complainant vide reference No.12868225 dated 05/06/2018 with a request to assist the surveyor (OP No.5). But the Ops are did not settle the matter till today in spite of repeated request made by the complainant. Therefore, finding no other way out, the complainant sent legal notice against the Ops on 28/03/2019, but they remained silent over the matter even after receipt of legal notices. From the above nature and conduct of the Ops, it is crystal clear that they are deficient in rendering their service towards the complainant.

            The cause of action for filing of this case arose on 01/04/2018, when the Ops remained silent even after receiving legal notice and turned a deaf ear to the request letter of the complainant. Hence, finding no other way out, the complainant was constrained to file this case. Hence, this case.  

            To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of the order sheet, final form and other police papers in GR Case No.838/2018 of the Court of SDJM, Bhadrak.
2. Photocopy of insurance policy in respect of the vehicle.
3. Photocopy of appointment letter of Surveyor to the complainant.
4. Photocopy of legal notice, postal receipts, ADs. 
5.  Photocopy of vehicle particulars.
6. Photocopy of Aadhar card of the complainant.

             In the present case, Ops No.1 to 4 made their appearance through their representative Advocates and filed their joint written version, but the same has not been accepted, vide order dated 30/10/2019. During course of hearing, learned counsel for OP No.1 to 4 relied upon the insurance policy of the vehicle in question which is marked as Annexure-A and letter of repudiation marked as Annexure-B. OP No.5 did not appear in this case for which he was set ex parte vide order dated 09/04/2024.  

            In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the complainant is a consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the Ops?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the complainant is entitled to? 

F  I  N  D  I  N  G  S

            Before delve into the merits of the case, it is required to be decided how far the complainant is able to prove his case with regard to the cause of action and maintainability of the case and especially whether he is a consumer or not.

            On perusal of Annexure-2, 5 & 6 as well as Annexure-A, it is reflected that the goods carrier vehicle of the complainant bearing Registration No. OR-09H-0792 was insured for Rs.05,00,000/- under the Ops vide Policy No.3003/144418526/00/00000 which was valid from 20/02/2018 to 19/02/2019. It is the claim of the complainant that his vehicle was stolen away in the night of 29/05/2018 near Charigharia Chhak when it was parked with proper lock and key. Being informed by the driver of the vehicle about the matter, he searched for his vehicle, but could not tress out for which he lodged a written FIR before the concerned police station in the district of Bhadrak. Consequently, the concerned police took up investigation and submitted charge sheet against the accused persons who have stolen away the alleged vehicle. That apart, the complainant had also intimated the Ops regarding theft of his vehicle in question and subsequently submitted claim form before the Ops.

            That, it is pertinent here to discuss that the Ops have not turnout to file their Written Version in this case matter with the permitted time limit, as laid down in the C.P. Act. Hence, it was not accepted vide order dated and kept in the record. However, for an academic aspect the points laid down in the WV is discussed as hereunder.

            Learned counsel for the contesting Ops submitted that upon receipt of claim intimation from the instant complainant regarding the theft of his vehicle, they have issued the claim form and taken early steps by deputing an investigating agency to ascertain the truthfulness of the claim made by the complainant. Therefore, the Ops have rightly repudiated the claim of the complainant and thus, the Ops have not committed any manner of deficiency in service, as claimed by the complainant.

            From the above rival submissions, it is the claim of the Ops that investigation was made in the matter and it was made out from the investigation report that the insured truck was parked with the ignition key at the time of alleged theft. Further, Ops have emphatically stated that as per Sl. No.5 of the policy condition the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage, but in the present case the complainant has left the vehicle without proper safeguard the insured vehicle resulting out to theft of the vehicle. That apart, the complainant has also failed to produce the ignition key of the vehicle as required by the Ops to process the claim in accordance to the terms and conditions of the policy issued. In relying upon the decision of the Hon’ble NCDRC, New Delhi in Revision Petition No.3045 of 2013, the Ops have submitted that the claim of the complainant was repudiated on the ground that the complainant was negligent in taking care of the truck in question as the key was left inside the alleged truck and thereby the key of the vehicle was not produced before the police. Thus, commission of the negligence on the part of the driver cannot be ruled out.

            In order to substantiate their claim, not a single document is placed before this Commission to prove that the Ops have investigated into the matter by their own or by any other agency. The Ops have not also produced the investigation report as made out by the investigating concern, as claimed, wherein the investigating officer has mentioned that at the time of theft the ignition key was with the truck. From the policy papers & other documents as submitted on behalf of the complainant vide Annexure-1 series, it is found that Investigating Officer namely Manoj Kumar Rout, the then IIC, Bhadrak Town PS has seized, from the driver, one ring contains three numbers of Keys including the key of the stolen truck, key of cash / document box and key of diesel tank of the stolen truck bearing Regd. No. OR-09H-0792 vide seizure list dated 30/05/2018. Had the driver of the alleged vehicle have left the ignition key within the truck at the time of commission of theft and / or leaving the truck at parking place, then how come the Investigating Officer had seized the key, as afore said, of the alleged truck at the time of investigation. Thus, the claim of the Ops that the complainant has violated the terms and conditions of the policy bond and has not taken any reasonable steps to safeguard the vehicle from loss or damage and the complainant has not produced the ignition key of the vehicle before the Ops seems to be baseless and far from any consideration. Further, the facts stated about the Revision Petition No.3045 of 2013, as cited by Ops, it is evident to be quite different from that of the present case matter. Therefore, repudiation of the claim of the complainant on the above flimsy grounds sounds no good. Before repudiation of the claim of the complainant, the Ops must have taken into consideration all the police papers relating to Bhadrak Town P.S. Case No.130 of 2018 corresponding to G.R. Case No.838 of 2018 pending before the Hon’ble Court of S.D.J.M., Bhadrak. From the above, it is clear that the Ops have not at all investigated at any angle into the matter. Without considering the material facts available before this Commission, repudiation of the claim of the complainant haphazardly and is held to be illegal which otherwise amounts to deficiency in service on the part of the OPs. That, last but not the least, it is quite ridiculous to observe that, in that aforesaid context when the keys were recovered / presented before the Police and the truck was not at the place of parking (Theft), then how come the investigating concern, after a span of time, found that the keys were in the truck at the time of occurrence of theft and the truck was parked before the rented house of the driver. Hence, the affidavit as filled by one Jayanta Sahoo, the representative of OP No.5, is considered to be a false statement and hence it is rejected.

            So, now upon careful consideration of all the materials available in the case record vis-a-vis submissions made by complainant & O.Ps No. 1 to 4, this Commission is of the unanimous opinion that the O.Ps No. 1 to 4 have not adjudicated their dispute properly before the Commission. There is no solution arrived by the O.Ps No. 1 to 4 for the loss sustained / suffered by the complainant incurring out of aforesaid deficiency on the part of O.Ps No. 1 to 4, which legally termed as deficiency-in-service by the O.Ps No. 1 to 4. Consequently, the O.Ps No. 1 to 4 are jointly and severally held to be liable for the compensations, as claimed for, by the complainant. Therefore, the complainant reserves the right to be entitled to get the relief as sought for.

            Hence, it is ordered -

O   R   D   E   R

            Having regard to the judgement reflected above, the complaint petition of the instant complainant bears merit and hence allowed on contest against the O.Ps No.1 to 4 and dismissed on ex parte against O.P No.5. Hence, the O.Ps No.1 to 4 are hereby jointly & severally directed to:

1. pay a sum of Rs.05,00,000/-, the sum assured of the vehicle in question with an interest @ 9% per annum from 01/04/2018 till its actual realization to the complainant.
2. pay a sum of Rs.05,00,000/- for sustaining of financial loss to the complainant.

            All the aforesaid awarded amounts shall be paid by the O.Ps No.1 to 4 to the complainant within 45 days from the date of receipt of this order.

            In case of failure by O.Ps No.1 to 4 to comply any of the orders as above mentioned, within the aforesaid stipulated time frame, the complainant is at its liberty to realize the same in the shape of cash, kind and / or in any other mode as afore mentioned, from the O.Ps No.1 to 4 as per the prevailing law.

            Pronounced in the open court of this Commission on this day i.e. the 16^th day of December, 2024 given under my signature & seal of the commission.